LB Lambeth v Fanfair, County Court at Clerkenwell & Shoreditch, 14 February 2023
Our grateful thanks to Angharad Monk of Garden Court and Gurminder Birdi at Cambridge House Law Centre for this note of LB Lambeth’s claim for an injunction against Ms Fanfair under Part 1 Anti-Social Behaviour, Crime and Policing Act 2014, and the much delayed (if surely inevitable) strike out of the claim. A county court decision, but worthy of note here not just for the flimsy and inadequate evidence on which Lambeth initiated and pursued proceedings, but also for the way they continued to pursue proceedings for the best part of a year, despite breaching directions and despite the evidence of their own expert. Lambeth not turning up to the final hearing was perhaps a fitting dénouement. Anyway, the upshot is that ordinary noise is not ASB, and lack of sound insulation does not make ordinary use into a nuisance.
The note of case follows.
Lambeth brought this claim against Ms Fanfair on the basis of complaints of noise nuisance from her upstairs neighbours. The flat is a converted period terraced house.
The neighbours made a very large number of complaints of noise nuisance, what was described as unreasonably loud music, shouting etc. 3 video clips were disclosed which were of basically no evidential value, could barely hear anything.
Ms Fanfair had maintained throughout that she was just using her Property normally and that her neighbour was complaining due to the extremely poor sound insulation in the building which meant that everyday noise was carrying between the flats. Ms Fanfair had also maintained that the complainant neighbour was harassing her, both through the continuous complaints, and various other incidents of abuse and assault.
Prior to proceedings the difficulties had been ongoing for around 15 years, and Ms Fanfair’s gave an account of repeated attempts to seek Lambeth’s assistance in resolving the problems with her neighbour. Mediation took place and it was accepted that sound insulation was needed, but this was never completed and Ms Fanfair reported being told that it was impossible to install this without access to the complainant neighbour’s property which had been denied.
After Lambeth issued ASBI proceedings against Ms Fanfair in March 2022, and obtained an interim injunction, Ms Fanfair filed witness evidence in her defence from both herself and her two neighbours to either side, denying that she causes any more than normal everyday noise and that problems arose from poor sound insulation. Ms Fanfair exhibited a note from her neighbour in which the neighbour complained about the sound of snoring to demonstrate the point.
At a return date in May 2022 District Judge Hayes adjourned the matter for 6 weeks to enable Lambeth to disclose the audio and video evidence it relied upon (which it was assumed must be more than the 3 clips) and for exploration of levels of sound transmission between the flats in the building by Lambeth’s noise protection team.
The case returned in July 2022 by which time Lambeth had not disclosed any recordings (it turned out later that the three clips provided were all it had) nor had it conducted sound testing. The interim injunction was discharged by District Judge Beckley who also then formally directed Lambeth to carry out tests to explore the sound insulation.
Lambeth again failed to arrange for the sound insulation tests by the time of the next return date in September 2022, and an unless order was then made requiring the expert sound testing evidence to be provided by 2 November 2022.
Lambeth then applied to extend that deadline without informing Ms Fanfair. The deadline was extended by the court without hearing, and finally a report was filed and served on 9 November 2022. Only at this stage did Lambeth inform Ms Fanfair of the application to extend.
The expert report found that the flat suffered from poor sound insulation and that the complainant may be disturbed by normal everyday noise as a result.
Upon receipt of the expert report and the application to extend, Ms Fanfair objected to Lambeth’s application to extend the deadline (unaware that the court had already granted it). Upon receipt of the order extending the deadline she formally applied to set it aside.
The matter came back before the court in January 2023. Despite the contents of the expert report, Lambeth refused to concede the application, and District Judge Pigram declined to decide either the set aside application or to consider summary judgment on that date due to lacking the relevant papers and insufficient time. The matter was adjourned yet again with an order indicating that summary judgment would be considered at the following hearing.
In February 2023 the matter was listed for the final time. Without explanation to either Ms Fanfair or the court, Lambeth did not attend. District Judge Jeffs proceeded in Lambeth’s absence and accepted that the test for summary judgment was met as Lambeth has no reasonable prospect of succeeding. Costs to the Defendant.